August 25, 2014

Lawyers and Slavery: Part One

As Al Brophy has often reminded us, slavery was a constant subject of litigation throughout the antebellum period. As a teacher of Trial Advocacy, I have been interested in the approaches that were taken by individual lawyers in cases involving human “property.” Of course, trial strategy was always influenced by client needs. But even so, tactics could vary tremendously from attorney to attorney. In a series of three (or maybe four) short posts, I will describe the role of some lawyers who represented slaves, or slave-rescuers, in the 1850s, with the first example following the break.

In the autumn of 1858, a posse of Kentucky slavecatchers waylaid a fugitive on the outskirts of Oberlin, Ohio. They attempted to take their prisoner to Columbus, where they expected to obtain an “order of removal” from a commissioner under the Fugitive Slave Act, but they were intercepted in Wellington by a band of Oberliners – both blacks and whites, who were students, faculty, and citizens of the progressive town – who had been alerted to the kidnapping. The crowd besieged the hotel where the slavehunters had taken refuge, eventually storming the building and freeing the prisoner. He was soon spirited to Canada, where he lived the rest of his life in freedom.

That was not the end of the story, however, as the Buchanan administration took decisive action, indicting thirty one men – including twelve African-Americans – for violating the Fugitive Slave Act. Most of the indictees were arrested and confined in the Cuyahoga County jail.

Two defendants were brought to trial the following spring: Simeon Bushnell, a white bookseller who had actively participated in the rescue, and Charles Langston, a leader of Ohio’s African-American community who had only attempted to negotiate a peaceful resolution (although the prosecution claimed otherwise).

Lawyers in the 1850s had defended fugitives and rescuers, but they had always tip-toed around the issue of civil disobedience, which had been promoted vigorously by abolitionists as a moral response to slavery. This sometimes required producing questionable (if not perjured) testimony, and always required rhetorical gymnastics to avoid the clear demands of the infamous Fugitive Slave Act. It was not really until the Oberlin trials that civil disobedience was raised as a defense in court. There had been cases of jury nullification in Boston, but no lawyer had openly asked a jury to obey the “higher law” instead of following the judge’s instructions.

Defense counsel Albert Riddle therefore shocked the court and the spectators when he announced, “I am perfectly frank to declare, that I am a votary of that Higher Law.” He proceeded to urge the jury to acquit out of abhorrence for slavery, and he told the judge (a pro-slavery Democrat) that he should risk impeachment rather than enforce an immoral law.

The jury, however, had been rigged by the U.S. marshal – an even more pro-slavery Democrat – but even so it took them three hours to return a conviction against Langston, which was an unusually long time in that era. But that was not the end of it. At sentencing, Langston expressed no remorse, and he defiantly told the court that he would continue to violate the Fugitive Slave Act at every opportunity:

I must take upon myself the responsibility of self-protection; and when I come to be claimed by some perjured wretch as his slave, I shall never be taken into slavery . . . . I stand here to say that I will do all I can, for any man thus seized and held.

Remarkably, the judge was moved by Langston’s speech. He considered Langston’s race and hatred of slavery a mitigating circumstance, and therefore imposed only a token sentence. As Langston’s younger brother – John Mercer Langston, who would become the first black U.S. ambassador to a foreign country – put it, “One small victory for the Higher Law.”

In future posts, I will describe the tactics of two other exceptional lawyers in slavery-related cases – one of them admirable and the other not. (And yes, Charles Langston was the grandfather of Langston Hughes. You can read more about him in Fugitive Justice: Runaways, Rescuers, and Slavery on Trial.)

Comments

You can follow this conversation by subscribing to the comment feed for this post.

This is really interesting, Steven. I'm really intrigued by lawyers who tried to turn the legal system to an anti-slavery purpose.

But given my own research interests, I'm particularly curious about lawyers who represented enslaved people in the south -- and I guess those who represented slave-owners in the North. As to lawyers for enslaved people in the south I'm wondering several things. First, did those lawyers start out with a sense that they should help enslaved people? Second, for those who were just taking whatever case they could find (rather than doing this for ideological and humanitarian reasons), did those lawyers become anti-slavery (or were their views softened) by representation of the enslaved?

Yes, those things interest me as well. Future posts will discuss two pro-slavery lawyers -- one in the north and one in the south.

An interesting study would be Seth Thomas, who was the go-to lawyer in Boston for slave owners seeking to recover their "property." Richard Henry Dana called him a "pimp," to which Thomas replied that his actions were strictly professional, and his clients were entitled to representation.

I look forward to learning more about Seth Thomas. I think the ideology of lawyers is under-studied in US legal history and I'm curious why that is. If wonder if when we begin to question whether lawyers are doing something out of ideological commitment that begins to call into question the right of their clients to representation?

This is a great post, and I am looking forward to the rest of the series. I wonder if the attorney knew that his client was likely to face a relatively light punishment. From my recollection, most lawyers who used the courtroom as a stage to attack slavery had cooperative clients. I wrote a piece as a law student about the litigation against Sherman Booth in Wisconsin for violating the Fugitive Slave Act, and Booth stood up in court himself and denounced the law.

I also wonder how effective these courtroom dramas were at changing public opinion. Mike Klarman, among others, has asked whether litigation was really a good use of resources for the civil rights and gay rights movements, but I am not sure if anyone has asked the same questions for antislavery lawyers. I think there might be reasons to think litigation was especially effective for abolitionists.

This also reminds me of a very interesting presentation by Dan Farbman at last year's ASLH conference. He spoke about a judge in Massachusetts (Judge Hoar)who seemed to tell his jury that civil disobedience to the Fugitive Slave Act was morally justifiable. I don't recall if he talked about how the attorneys argued the case though.